Alternative Dispute ResolutionTimes 21 July
6.44Legal proceedings do not offer an ideal solution to every dispute. The outcome is win or lose, limited to legally relevant interests, often uncertain, and possibly slow and costly. Alternative dispute resolution (ADR) recognises that parties have interests beyond those that are legally relevant and that an appropriate outcome should try to identify common ground and reconcile those interests that are in conflict. It can also be cheaper and quicker, although this is not necessarily so for every type of procedure.
Forms of alternative dispute resolution
6.45The forms of procedure available may be classified by reference to different criteria. One form of classification uses the nature of third party involvement as the criterion. This produces four categories. First are procedures, such as arbitration, in which a third party makes a legally binding decision. Second is neutral evaluation, in which a third party gives an independent opinion on the likely outcome of the case.
1Evaluation of Early Neutral Evaluation Alternative Dispute Resolution in Social Security and Child Support Tribunal, Carolyn Hay, Katherine McKenna and Trevor Buck, Ministry of Justice Research Series 2/10, January 2010. Third are procedures, such as mediation, in which a third party helps the parties reach an agreement. Fourth is direct negotiation between the parties.
Alternative dispute resolution under TCEA
6.46Chapter 2 of the White Paper on
Transforming Public Services: Complaints, Redress and Tribunals2Cm 6243. set out a long-term aim of transforming the way that people deal with legal problems and disputes. TCEA s2(3)(d) is consistent with that approach:
(3)A holder of the office of Senior President of Tribunals must, in carrying out the functions of that office, have regard to–
…
(d)the need to develop innovative methods of resolving disputes that are of a type that may be brought before tribunals.
6.47The law has not reached the point of requiring parties to attempt to resolve their disputes through alternative dispute resolution before resorting to law.
3But the availability of an alternative remedy is a factor in judicial review proceedings: Humphries v Secretary of State for Work and Pensions [2008] 2 FLR 2116 at [109]. Accordingly, in furtherance of the duty under section 2(3)(d), the rules of procedure provide that tribunals should merely inform the parties about appropriate alternative methods for the resolution of their dispute and, if the parties wish and it is compatible with the overriding objective, facilitate their use.
4See: UTR r3; GRC Rules r3; HESC Rules r3; Lands Rules r3; PC Rules r4; SEC Rules r3; Tax Rules r3; WPAFC Rules r3. The relevant CPR provisions are rr1.4(2)(e) and (f) (case management) and 44.5(3)(a)(ii) (costs).6.48The rules are an exhortation; they do not impose a duty. However, this does not mean that they are ineffective, as the research on mediation shows that judicial encouragement has a significant impact on the willingness of parties to use the procedure.
5See Lord Justice Jackson’s Review of Civil Litigation Costs: Preliminary Report 2009, Chapter 43, paras 6.19 and 6.26. A failure to use an alternative form of dispute resolution may also be relevant to costs.
6Halsey v Milton Keynes General NHS Trust [2004] 1 WLR 3002 and chapter 7.6.49If the rules of procedure provide for mediation, TCEA s24 applies.
Appropriate procedures
6.50Alternative dispute resolution is more appropriate to private law disputes than public law ones. However, some forms may be appropriate to public law, neutral evaluation in particular. Moreover, some government departments (such as Her Majesty’s Revenue and Customs) are more open to negotiation than others (such as the Department for Work and Pensions).
Alternative techniques in tribunal proceedings
6.51A case before a tribunal is a legal proceeding. It is not an alternative form of dispute resolution. As Pill LJ said in
Haringey London Borough Council v Awaritefe:
7(1999) 32 HLR 517.… the court must remind itself that it is the judge not of standards of administration but of the law. It is to be expected, and indeed hoped, that there is very considerable coincidence between what is required of a local authority by way of good administration and what is required by law. There may however be cases where conduct which may be categorised as poor administration, or even maladministration, does not fall below the standard required by the law.
8(1999) 32 HLR 517 at 531.6.52However, even within tribunal proceedings, there may be more scope to operate some of the techniques employed in alternative dispute resolution than is possible in court proceedings.
6.53One technique from alternative dispute resolution is to agree on fair criteria by reference to which a dispute should be resolved. A tribunal has to apply the law. That leaves no scope for the parties to agree on the principles that the tribunal should apply. However, the tribunal can assist the party to understand that there are principles and what they are. The party may not be satisfied that other factors are irrelevant, but at least will understand the confines within which the tribunal has to operate and appreciate the significance of its inquiries and outcome.
6.54Another technique from alternative dispute resolution is to focus on the party’s underlying concerns and interests. A tribunal proceeding is more suited than that of a court to dealing with the issues that underlie a party’s case. They are able to address the party’s real interests and concerns rather than limit themselves to the legal issues that arise. For example: claimants in overpayment social security appeals may feel aggrieved that the overpayment decision brands them as liars and cheats. They may have been prompted to appeal on this account rather than by any disagreement with the facts of what happened or with the way the law has been applied. If the decision does not carry any implication of dishonesty, and it often does not, the tribunal can explain that and, perhaps, emphasis it in the decision.
Ex gratia schemes
6.55These are not usually classified as a form of alternative dispute resolution. They may provide a remedy where the law provides none, or they may provide an alternative to, or supplement, the remedy that the law offers.
6.56A minister is entitled to withdraw a scheme. Its mere existence does not create a legitimate expectation of consultation before withdrawal.
9R (Bhatt Murphy (a Firm)) v Independent Assessor [2008] EWCA Civ 755; (2008) Times 21 July.6.57Someone aggrieved should attempt to use a scheme that can provide an appropriate remedy before applying for judicial review.
10Humphries v Secretary of State for Work and Pensions [2008] 2 FLR 2116 at [109].